Noble v. Harris

• Decision Date: 03 February 1921
• Citation: 33 Idaho 401,195 P. 543
• Parties: ANNA NOBLE, Trustee, Respondent, v. ALVIN M. HARRIS, Appellant
• Court: Idaho Supreme Court

195 P. 543

33 Idaho 401

ANNA NOBLE, Trustee, Respondent, v. ALVIN M. HARRIS, Appellant

Supreme Court of Idaho

February 3, 1921

REAL PROPERTY-FORECLOSURE OF MORTGAGE-NECESSARY PARTIES-TENANT UPON AGRICULTURAL LANDS-WRIT OF ASSISTANCE-REAL PARTY IN INTEREST.

1. Under the admitted facts in this case, appellant comes within the provisions of C. S., secs. 6949 and 6674, and is bound by the decree of foreclosure as fully as if he had been made a party to the foreclosure proceedings and served with the cross-complaint.

2. Petitioner's mere delay in seeking possession of the land in controversy did not make appellant a tenant on agricultural lands entitled to hold over under C. S., sec 7322.

3. In this case the petitioner, who was the holder of the sheriff's deed to the tract of land in controversy, was the real party in interest and the proper person to apply for a writ of assistance.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Application for writ of assistance. Application granted and defendant Alvin M. Harris appeals. Modified and affirmed.

Modified in part and affirmed in part. No costs awarded to either party.

E. J Dockery, for Appellant.

Harris was in possession under an expired lease on agricultural lands, and he was permitted to remain undisturbed in possession of the premises from January 1, 1916, without a word of complaint from petitioner until April 7, 1916, and without any act on her part until June 10, 1916. Harris is entitled ipso facto to a full year's possession on being allowed to stay 60 days without molestation, under subd. 2 of sec. 7322, C. S. (Hooper v. Yonge, 69 Ala. 484; Daniell's Ch. Pr. 272 and 1062, 1063.)

J. L Niday, for Respondent.

Harris had no interest in said lands, either as holder of record title or of record lien of any kind, at the time of the filing of the cross-complaint of said Idaho Trust and Savings Bank in said suit, or at the time of the filing of the lis pendens therein. Therefore, the provisions of sec. 6949, C. S., are squarely in point. (Harding v. Harker, 17 Idaho 341, 134 Am. St. 259, 105 P. 788; Hibernia Sav. & Loan Soc. v. Cochran, 141 Cal. 653, 75 P. 315.)

DUNN, J. Rice, C. J., Budge and Lee, JJ., concur. McCarthy, J., took no part in the hearing or this decision.

OPINION

DUNN, J.

In 1909 the appellant Alvin M. Harris was the owner of 540 acres of land in Owyhee county, on which there were two mortgages aggregating $ 7,496. In addition to this, he owed the Idaho Trust & Savings Bank of Boise, $ 11,000 on loans. Being unable to pay, he authorized the bank to make sale of this property for $ 22,000 and out of the proceeds to pay the aforesaid mortgages and the amount due said bank. The bank made sale of this land for Harris to one Gilbert Donaldson, to whom Harris executed a deed. Being unable to pay the full purchase price, Donaldson obtained a loan from the bank and to secure it gave a mortgage on the land purchased. In July, 1911, claiming that the land had been misrepresented to him, Donaldson brought suit to have the sale set aside and to recover the purchase price, making the said bank and Harris and several other persons parties defendant. In this action Harris defaulted, but the bank answered, denying the allegations of the complaint, and at the same time filed a cross-complaint against Donaldson, asking the foreclosure of the mortgage that he had given to secure the payment of money borrowed from the bank in purchasing the land, and thereafter filed a notice of lis pendens. At the time of the filing of the cross-complaint and the notice of lis pendens Harris had no interest whatever in the land and was not served with the cross-complaint. Thereafter the action came on for trial and Donaldson obtained a judgment setting aside the sale and returning the purchase money to him, on condition that he obtain a cancelation of certain leases on the land in controversy and redeed the land to Harris, both of which he did. At the same time and in the same judgment it was decreed that the land in controversy be sold to satisfy the mortgage given by Donaldson to the bank.

Thereafter on the twenty-fourth day of January, 1914, the land was sold at public sale pursuant to said decree, and the bank became the purchaser, to which a certificate of sale was issued on the sixth day of February, 1914. On November 30, 1914, the bank assigned said certificate to the petitioner, Anna Noble, and on the fifth day of March, 1915, the sheriff of Owyhee county executed and delivered to the assignee and petitioner...